Starks v. Hospital Serv. Plan of N.J., Inc

In Starks v. Hospital Serv. Plan of N.J., Inc., 182 N.J. Super. 342, 352, 440 A.2d 1353 (App.Div.1981), aff'd, 91 N.J. 433, 453 A.2d 159 (1982), the Court explained that our Supreme Court has rejected the approach taken by many courts of reconciling conflicting "Other Insurance" provisions so "that one, but not both, of such provisions must yield in order to establish one policy as the 'primary' insurance upon which the 'other insurance' provision of the 'secondary' policy might operate." Id. at 352-53, 440 A.2d 1353 (quoting Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., 28 N.J. 554, 559, 147 A.2d 529 (1959)). Such "mutually repugnant" provisions become inoperative, and the general coverage of each policy applies, such that "each company is obligated to share in the cost of the settlement and expenses." Id. at 353, 440 A.2d 1353. In Starks, the Court reasoned that the "existence in each of the clauses of language which establishes precisely the same order of payment for each coverage" is the "predicate of mutual repugnancy." Ibid. However, if either policy "clearly expressed" an intention to provide coverage "prior to or subsequent to the other, that intention will ordinarily be enforced by the courts." Ibid.